President Trump’s new travel ban displays operational sophistication and careful lawyering — qualities missing from his Jan. 27 executive order, which judges quickly enjoined. The newly careful drafting may be enough to bring eventual government victory in court. But in striving so obviously to avoid footholds for judicial review, the new order unwittingly exposes the policy hollowness and, it should be said, the foundational dishonesty of the blanket travel bans.
The first order, clumsily drafted and launched, blocked for 90 days all entries of nationals from seven predominantly Muslim countries and suspended the refugee program for 120 days. It also required a 30-day review of vetting procedures, meant to identify countries that do not share enough information with the United States. If those countries then fail to change their practices, the order contemplated a new presidential order barring entry of that country’s nationals, possibly as early as May.
Court decrees preliminarily blocked Trump’s entry bans from going into effect, based on the plaintiffs’ initial showings of due process violations or religious discrimination. Somewhat surprisingly for the Trump administration (because the move tacitly conceded flaws in the initial action), the government asked the courts to withhold further proceedings until a new executive order issued.
The new order, set to take effect March 16, restarts the 90-day country-focused travel ban and the 120-day suspension of refugee admissions. It then deploys a twofold strategy meant to preclude future judicial setbacks. First, it seeks to lay a better substantive groundwork, reprinting excerpts from State Department terrorism reports plus Justice Department statistics on terrorist investigations, for maneuvering courts back into their usual highly deferential stance toward presidential actions on immigration, especially actions with national security overtones.
Second, the new order significantly restricts the scope of the ban. It will not apply to lawful permanent residents, anyone previously granted asylum or other protections, anyone holding a valid visa as of March 16, and certain other categories. Further, it takes Iraq off the list of barred countries. Iraqis who had bravely served as translators for the U.S. military were some of the most visible and sympathetic individual plaintiffs in the first round of litigation.
These exemptions are welcome, but they also amount to an effort to gerrymander the group of affected individuals so as to reduce bad press and to leave no individual plaintiffs legally capable of challenging the bans. Nonresident aliens who have no substantial connection with the United States are often held to lack standing to sue and are also beyond the scope of at least some constitutional rights. The order proudly states that it “expressly excludes from the suspensions categories of aliens that have prompted judicial concerns.”
Beyond these express exemptions, the new order also allows consular officers or Homeland Security officials to waive the ban in individual cases, if a bar to entry “would cause undue hardship.” The executive order then describes nine illustrative cases where a waiver could be granted, including anyone who has previously been admitted to the United States for work or study and now wishes to return, anyone who seeks to enter “for significant business or professional obligations,” and anyone who wishes to visit with a close family member lawfully present in the United States.
So let’s take stock of the new order. The existing screening procedures are so defective that we need to resume a blanket presidentially ordered 90-day suspension of entry covering the nationals of six countries, plus a more damaging blow to the refugee program. The risk must be massive, because this ban goes light years beyond any previous use of the entry suspension power. Even when the 9/11 attacks revealed genuine and systematic shortcomings in visa vetting, we did not resort to travel bans based simply on nationality.
Nonetheless, per the new order, somehow current visa screening is good enough to assure that anyone who already has a visa can be safely exempted from the nationality ban, and that waivers can be readily granted to a wide range of other people on the say-so of a single consular officer, provided there is a further finding of undue hardship.
This is not the profile of a true national-security order. The 90-day ban is especially hollow in view of the review process the Jan. 27 order also launched. A fresh look at vetting procedures, directed toward all countries of the globe and aiming for tailored changes to address weaknesses, is fully appropriate for a new administration. Wisely, no court ever stayed that review process. The report should have been completed by end of February. The new executive order now requires its completion within 20 days of the effective date. Therefore, by April 5 the administration should know in detail the shortcomings in every country’s cooperation on visa vetting, enabling focused corrective measures.
All this “sturm und drang” over blanket travel bans, premised on sweeping claims of defective vetting, therefore really covers only a 20-day period while that report is completed. One cannot avoid the conclusion that a domestic tough-guy message, through the swaggering use of a broad presidential authority, was the real point all along, not genuine risks to national security.
The courts may not be able to reach that formal conclusion, unless perhaps they also see this order as infected with stark religious discrimination. (Given Trump’s “Muslim ban” campaign statements, that is still a potentially workable theory, if there are any remaining plaintiffs with the ability to sue.) But the rest of us, not shackled by judicial deference doctrines, should never lose sight of the exposed contradiction.
David A. Martin is professor emeritus at the University of Virginia School of Law. He served as principal deputy general counsel for the U.S. Department of Homeland Security in the Obama administration from 2009 to 2010. He also served as general counsel to the U.S. Immigration and Naturalization Service in the Clinton administration from 1995 to 1998.
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